This Software Indemnification Addendum (the “Indemnification Addendum”) is an addendum to that Subscription Agreement between Tidelift, Inc. (“Tidelift”), a Delaware corporation, and the Customer identified in the Order Form that references both this Indemnification Addendum and the Subscription Agreement. Capitalized terms used in this Indemnification Addendum that are not defined herein are used as defined in the Subscription Agreement or the Order Form.
Tidelift has provided Customer with access to certain Services pursuant to the Order Form and Subscription Agreement. Customer now wishes to purchase from Tidelift certain additional Services relating to intellectual property Indemnification for the consideration described in the applicable Order Form.
Customer and Tidelift therefore agree as follows:
For the purposes of this Indemnification Addendum, “Covered Software” means the software which Tidelift designates, through its software platform, as “lifted”.
To be eligible for the Tidelift Indemnification (as defined below), the applicable Order Form must specify that the Services include Tidelift Indemnification, and Customer must: (i) be a current paid Tidelift Software Indemnification customer with an account in good standing at the time the Claim is brought; (ii) not be in litigation with, have received of alleged infringement from, or otherwise reasonably expect to receive an allegation of infringement from, a party against whom relief is sought at the time Customer executes this Indemnification Addendum; (iii) notify Tidelift promptly, but in no event later than ten days of receipt of any Claim for which relief is sought under this Indemnification Addendum; (iv) allow Tidelift to solely control and conduct the defense of the Claim with counsel of its choice and to settle any such Claim at Tidelift’s sole discretion; (v) provide reasonable cooperation with Tidelift in the defense of the Claim; and (vi) otherwise comply with all terms of this Indemnification Addendum.
Tidelift’s obligations in clauses (a) and (b) below may collectively be referred to as the “Tidelift Indemnification”.
If an unaffiliated third party initiates a legal action against Customer alleging that Customer’s use of Covered Software directly infringes a third party’s copyrights, patents or trademarks, or misappropriates a third party’s trade secret rights (“Third Party Rights”) (such action, a “Claim”), and Customer meets the eligibility requirements in Section 1.2, then: (a) subject to the terms of this Section, Tidelift will (i) defend Customer from such Claim, and (ii) pay all costs, damages and expenses (including reasonable attorneys’ fees and court costs) that are finally awarded or paid as part of a settlement that is attributable to Customer's use of the Covered Software; and (b) if Customer’s use of Covered Software is found by a court to infringe Third Party Rights (or if Tidelift reasonably believes that such a finding is likely), then Tidelift will, at its expense and option: (i) obtain the rights necessary for Customer to continue to use the Covered Software; (ii) modify the Covered Software so that it is non-infringing; or (iii) replace the allegedly infringing portion of the Covered Software with non-infringing code of similar functionality; provided that if none of the foregoing options (i-iii) is commercially reasonable, then Tidelift may terminate the Indemnification Addendum without further liability, and Tidelift will refund all fees paid by Customer relating to the Tidelift Indemnification during the twelve month period prior to the bringing of the Claim.
Tidelift will have no obligation to Customer under this Section with respect to any Claims based upon: (i) a modification of Covered Software made by Customer (other than at Tidelift’s written direction); (ii) Tidelift’s compliance with any designs, specifications or instructions provided by Customer; (iii) use of the Covered Software in combination with products, data, or services not provided by Tidelift, if the infringement or misappropriation would not have occurred without such combination unless such Covered Software has no substantial non-infringing use except in such combination; (iv) use of any release of the Covered Software if, as of the date of a Claim or threatened Claim, the infringement or misappropriation would not have occurred through use of a more recent release of the Covered Software; (v) use by Customer after notice by Tidelift to discontinue use of all, a portion of, or a specific release of the Covered Software (including, but not limited to, notices that software is no longer Covered Software because of a change in contractual relationship between Tidelift and the software’s maintainer); (vi) distribution of the Covered Software not authorized by Tidelift in writing, or (vii) a counter-claim brought against Customer in response to litigation initiated by Customer.
If not otherwise specified in the applicable Order Form, Tidelift’s obligations under the Tidelift Indemnification will be capped at the greater of (i) five times the amount paid by Customer to Tidelift for the Software Indemnification during the twelve months immediately preceding Customer’s notification to Tidelift of the Claim, or (ii) $250,000.
THIS SECTION STATES TIDELIFT’S SOLE LIABILITY, AND CUSTOMER’S SOLE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT BY THE COVERED SOFTWARE.
This Indemnification Addendum is effective during the time period indicated on the Order Form. If either party materially defaults in the performance of any of its obligations hereunder and if any such default is not corrected within 30 days after notice in writing from the party identifying such breach, then the non-defaulting party, at its option, may, in addition to any other remedies it may have, thereupon terminate this Indemnification Addendum by giving written notice of termination to the defaulting party.
Each party is signing this Indemnification Addendum on the date stated opposite that party’s signature.
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